Tuesday, January 31, 2012

Year 172

The 172nd
year in the life of the Treaty of Waitangi saw a number of major developments
with significant potential to re-shape the Māori-Crown partnership.These developments have taken place in all
branches of government –important
decisions from the Supreme Court and Court of Appeal, as well as a major report
from the Waitangi Tribunal; the new foreshore and seabed legislation and
something of a reconfiguration of Māori representation in Parliament; and the
establishment of a Ministerial review of constitutional issues.

2011 was, of
course, an election year.But, by the
time of the General Election in November, an important change had already taken
place amongst the Māori seats.Early in
the year, Hone Harawira, the Member for Te Taitokerau, was suspended from the
Māori Party caucus after publicly criticizing the Marine and Coastal Area Bill
and the Māori Party’s support of that legislation.He resigned from the Māori Party, and re-won the his seat standing as an independent at the subsequent by-election. He was
returned again as the Member of Parliament for Te Taitokerau in the General
Election, this time as leader of the newly formed Mana Party. The Mana Party
list included a number of prominent left-wing activists such as Sue Bradford
and John Minto, as well as high-profile Māori advocates, many of whom were
formerly active within the Māori Party.Although the Mana Party did not achieve enough support to bring a second
MP into Parliament, the very formation of the party, along with the defeat of
the incumbent (and hard-working) Maori Party MP, Rahui Katene, in Te Tai Tonga
(to Labour’s Rino Tirikatene) suggest Māori voters have been concerned by the often
cosy relationship between the Māori Party and the National Party.

The new
foreshore and seabed legislation, which was the ostensible catalyst for the
split in the Māori Party, was duly enacted and now sits on the statue books as
the Marine and Coastal Area (Takutai Moana) Act 2011.I
have posted a number of times on this site about aspects of this legislation,
including the apparently cavalier attitude of National Party members of the
Māori Affairs Select Committee to the final shape of the legislation.It is true that the Marine and Coastal Area
Act makes some important symbolic changes and some other minor improvements to
the regulation of the foreshore and seabed, but the basic framework of the
previous legislation remains largely untouched.As I have noted previously, the Act maintains many of the discriminatory
aspects of the Foreshore and Seabed Act. It still, explicitly, treats
Maori interests as a lesser form of title than freehold title and until the
Government’s attitude to Maori customary interests changes, it is going to be
difficult to achieve a durable resolution of these issues and impossible to
achieve one that is just.

The state legal system’s
recognition of Māori custom and customary rights was also the subject of the
Court of Appeal’s decision in Takamore v Clarke.In this case, the Court essentially
had to determine whether the whānau of James Takamore (deceased) had the right,
by virtue of Tuhoe custom, to take the body of the deceased, as they had done,
to be buried on his ancestral lands. The Court of Appeal confirmed that the
executor of a will is entitled to make the final decision about where the
testator is to be buried. The Court reached this result by two different routes
reflected in the joint judgment of Justices Glazebrook and Wild and the
separate judgment of Justice Chambers.Justices Glazebrook and Wild reasoned that the Tūhoe burial custom that
allows the body of the deceased to be taken by force without the agreement of
the testator cannot be recognised by the common law because it is repugnant to
a “root” principle of the legal system, the rule of law. However, Glazebrook and Wild also set out what
they describes as “a more modern approach to customary law” and found that the
common law has developed to a point where executors should take indigenous
customs relating to burial into account under the common law.Justice Chambers agreed that the appeal
should be dismissed though he did not comment on whether the Tūhoe burial
custom could be recognised but rather reasoned that the custom did not apply to
Mr Takamore, whether or not it could be recognised at common law.

Another decision that is of particular relevance to Māori
that was also delivered in 2011 was the Supreme Court’s decision in Haronga v Waitangi Tribunal.Alan Haronga had originally made an application for an urgent hearing
of the Waitangi Tribunal in September 2009 in light of Crown advice that the
Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from
throughout the Gisborne region) intended to initial a deed of settlement in
December 2009. Mr Haronga sought an urgent hearing before the Waitangi
Tribunal to address remedies for Treaty breaches specifically in relation to
the Mangatu State Forest. Mr Haronga argued that redress in relation to
these breaches should be addressed through the Mangatu Incorporation and that
none of the groups within Te Manu Whiriwhiri had the mandate to agree a
settlement in relation to those specific issues.Judge Clark, in the Waitangi Tribunal,
declined the application for an urgent hearing, but the Supreme Court disagreed
with the three key planks of Judge Clark’s reasons and the majority considered
that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s
application and so ordered the Tribunal to undertake such a hearing (with
Justice William Young dissenting on the issue of remedy). The majority’s
decision is notable for requiring the Tribunal to undertake an urgent hearing
of Mr Haronga’s application and make a decision as to what, if any, remedy is
appropriate in this case. This, in itself, is likely to have considerable
ramifications for the way in which the Tribunal approaches urgency applications
in future, particularly those that relate to remedies.

The Waitangi Tribunal itself released a major
report in 2011.Ko Aotearoa Tēnei, the Tribunal’s report into the Wai 262 claims
was released on 2 July 2011 and marked the conclusion of
the Waitangi Tribunal’s first whole-of-government inquiry. The report makes detailed recommendations
for changes in law, policy, and government practice on matters relating to
intellectual property and traditional knowledge, genetic and biological resources of indigenous species, Māori communities relationship with the
natural environment in the context of both environmental planning and
conservation, the Māori language, museums and cultural heritage, traditional Māori healing and medicine, and the role of Māori in the making of international instruments which affect their interests. The Tribunal’s report and the findings and recommendations
within are now with the New Zealand Government, while officials formulate a
response. While the Government is under no legal obligation to accept the
Tribunal’s findings or to adopt its recommendations there is, no doubt,
political pressure currently being exerted on the Government to, on the one
hand, implement the Tribunal’s recommendations, and, on the other hand, to
reject those recommendations.Yet,
whatever the official response from government, this report will remain a
hugely significant document because it articulates a conceptually coherent
vision of a state founded in the worldviews of two distinct cultures.Importantly, it goes beyond simply
articulating a vision, but suggests a range of practical law and policy
mechanisms by which that vision might be realized.

While 2011 saw the conclusion of the Tribunal’s Wai 262 inquiry,
another potentially significant process is just beginning.The announcement of the Government’s
‘consideration of constitutional issues’ was actually made in December 2010,
though the formal appointment of a constitutional advisory panel did not take
place until August 2011.The panel is
comprised of a number of eminent New Zealanders, and roughly half the members
are Māori.It is notable, however, that
there are no constitutional lawyers on the panel.The panel has been appointed to:

establish a forum to develop and share a range of ideas on
constitutional issues, including seeking the views of all New Zealanders,
including Maori, in a manner that is reflective of the Treaty of Waitangi
relationship.

develop an understanding of the range of perspectives on New
Zealand's constitutional arrangements, including the range of topical issues
requiring further discussion, debate and policy consideration.

Meanwhile, the National Iwi Chairs Forum has established an
independent constitutional working group to develop recommendations for a
constitutional model that is based on tikanga Māori, the Declaration of
Independence and the Treaty of Waitangi.The Working Group is quite distinct from the Government review and has
much wider terms of reference.Convened
by Māori advocate and constitutional law expert Moana Jackson, the Working
Group will be undertaking a process of engaging Māori in discussion of constitutional
matters beginning this year.

With these major constitutional conversations taking place, the
173rd year in the life of the Treaty of Waitangi is shaping up to be another interesting
one in the development of the Treaty relationship.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review